Demaine v. First Am. Title Ins. Co.

ANGELINA DEMAINE, individually; PAIGE VIGUS, a minorand child of ANGELINA DEMAINE who will act as her Guardian ad litem, Appellants, v. FIRST AMERICAN TITLE INSURANCE COMPANY,a California corporation; JAMES A. WOLFF and "JANE DOE",individually and the marital community composed thereof; CITY OF SPOKANE,municipal corporation of the State of Washington; "JOHN DOE COMPANY",a business entity, Respondents.

No. 37236-7-III

COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE

February 11, 2021

UNPUBLISHED OPINION

FEARING, J. — We are asked to determine if a complaint states a cause of action. We hold that it does and reverse the trial court's dismissal of the complaint.

FACTS

Angelina DeMaine pled the following facts in her first amended complaint. Defendant 40 Main, LLC owns the building located at 40 East Spokane Falls Boulevard in Spokane. Defendant First American Title Insurance Company rents the building from 40 Main. Defendant City of Spokane owns the sidewalk and parking area behind the building. According to DeMaine, 40 Main and First American Title "designed, constructed, inspected, repaired, and maintained the sidewalk and parking area for the building located at 40 East Spokane Falls Boulevard." Clerk's Papers (CP) at 47.

On March 19, 2016, Angelina DeMaine parked her vehicle in a city parking area behind 40 Main's building. After DeMaine walked toward the building, she needed to retrieve possessions from her car. She walked back toward her vehicle down the city sidewalk and diagonally crossed a grassy area, known as a planting strip, between the sidewalk and her parked car. Although it was dark, DeMaine saw a manhole cover and walked by the cover on the left side. DeMaine did not notice a piece of broken concrete manhole cover, and her right foot got stuck in a hole. DeMaine then stepped onto the manhole cover and twisted her left foot, causing her to fall and sprain her ankle.

PROCEDURE

On March 13, 2019, Angelina DeMaine filed a complaint for negligence against First American Title, the City of Spokane, and "John Doe Company." CP at 3. On July 1, 2019, Angelina DeMaine filed an amended summons and complaint. The amended complaint removed John Doe Company as defendant and added 40 Main as a defendant. The amended complaint reads, in relevant part:

3.2. At all relevant times, the building located at 40 East Spokane Falls Boulevard in the city and county of Spokane in the State of Washington is the property of the defendant 40 Main, LLC. . . . Said building is occupied by the defendant First American Title Insurance Company. The sidewalk and parking areas outside the building are under the control of the defendant City of Spokane. . . .

. . . .

4.2. On or before March 19, 2016, the defendants designed, constructed, inspected, repaired, and maintained the sidewalk and parking area for the building located at 40 East Spokane Falls Boulevard in a negligent and careless manner so that the plaintiff DeMaine tripped over a poorly visible hole in a broken manhole cover and fell causing her to suffer serious injuries.

CP at 46-47 (some emphasis added).

On September 9, 2019, First American Title filed a motion to dismiss on the pleadings pursuant to CR 12(c) and CR 12(h)(2). 40 Main later joined the motion to dismiss. First American Title and 40 Main argued that they did not owe any duty to prevent Angelina DeMaine's injury on property that the City, not them, controlled.

On October 10, 2019, Angelina DeMaine requested leave to amend her complaint for a second time and filed a motion under CR 56(f) for continuance of the hearing date for First American Title's and 40 Main's motion for dismissal. DeMaine sought the continuance to gain more time to conduct discovery.

On October 25, 2019, the trial court granted Angelina DeMaine's motion to amend its complaint a second time. DeMaine, however, neither filed the new complaint nor served it on either 40 Main or First American Title Insurance. The trial court denied DeMaine's motion to continue the hearing date for the motion dismiss.

The second amended complaint changed the language in paragraphs 3.2, 3.3, and 4.2. Those paragraphs read:

3.2. At all relevant times, the building located at 40 East Spokane Falls Boulevard in the city and county of Spokane in the State of Washington is the property of the defendant 40 Main, LLC. . . . The sidewalk, planting strip, and parking areas located outside the south end of this building are along 40 East Main Avenue and are under the control of the defendants 40 Main, LLC and First American along with defendant City of Spokane. . . .

3.3. Sometime before March 19, 2016, the defendants (or their predecessors) planned, installed, and began maintaining the planting strip between the street and the sidewalk along 40 East Main Avenue at the south end of building located at 40 East Spokane Falls Boulevard. The defendants (or their predecessors) installed a sprinkler system in the planting strip along with a manhole with a concrete cover and three green in-ground sprinkler boxes with lids. The area around the sprinkler boxes and concrete manhole cover became compressed by tree roots causing the lids not to fit on the sprinkler boxes. The manhole with cover and the sprinkler boxes with cover were part of the planting strip's sprinkler system. The manhole's concrete cover was heavy and a piece of it had broken off leaving a hole in the manhole that should have been covered.

. . . .

4.2. On or before March 19, 2016, the defendants (or their predecessors) designed, constructed, inspected, repaired, and maintained the sidewalk, planting strip (with sprinkler system), and parking area located along 40 East Main Avenue along the south side of the building with the address of 40 East Spokane Falls Boulevard in a negligent and careless manner so that the plaintiff DeMaine stepped into a poorly visible hole created by a broken manhole cover and fell causing her to suffer serious injuries.

CP at 108-10 (some emphasis added). The second amended complaint adds an allegation that 40 Main and First American Title control the parking strip.

On November 4, 2019, the trial court granted the defendants' motion anddismissed all claims against 40 Main and First American Title. The trial court ruled that Angelina DeMaine's complaint failed to allege facts that showed that First American Title and 40 Main owed a duty to Angelina DeMaine.

LAW AND ANALYSIS

Angelina DeMaine assigns error to two of the trial court's decisions: (1) its denial of her motion for a continuance of the dismissal motion pursuant to CR 56(f), and (2) its granting of the motion to dismiss. By way of her first assignment of error, DeMaine argues she should have been granted the opportunity for discovery before the court entertained the motion to dismiss. Because we reverse the dismissal of the suit, we need not address this assignment of error.

In response to the motion for judgment on the pleadings, Angelina DeMaine's counsel filed a declaration on October 10, 2019. The declaration should have transmuted the defense motion into a summary judgment motion, but the parties continued to litigate the case before the superior court and continue to litigate the case before this reviewing court as a motion for judgment on the pleadings. We do the same.

When resolving Angelina DeMaine's second assignment of error, we must first resolve whether to consider Angelina DeMaine's first amended complaint or second amended complaint. CR 15 governs amended pleadings. The rule states in relevant part:

If a motion to amend is granted, the moving party shall thereafter file the amended pleading and, pursuant to rule 5, serve a copy thereof on all other parties.

CR 15(a) (emphasis added). Although the trial court granted DeMaine's motion to file the second amended complaint, DeMaine did not fulfill the rule's requirement of filing or serving the second amended complaint. Thus, the defendants argue the court should not consider the second amended complaint.

Angelina DeMaine agrees that the first amended complaint is the operative complaint for purposes of the motion to dismiss, but asks that we consider the second amended complaint as containing additional hypothetical facts consistent with her first amended complaint. In analyzing a motion to dismiss, we presume the plaintiff's allegations to be true and we may consider hypothetical facts not included in the record. Tenore v. AT&T Wireless Services, 136 Wn.2d 322, 330, 962 P.2d 104 (1998). Since we consider the first amended complaint sufficient to survive a motion to dismiss on its own, we do not address DeMaine's request.

The defendants brought their motion to dismiss under both CR 12(c) and CR 12(h). CR 12(c), which governs motions for judgment on the pleadings, states:

After the pleadings are closed but within such time as not to delay the trial, any party may move for judgment on the pleadings. If, on a motion for judgment on the pleadings, matters outside the pleadings are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by rule 56.

CR 12(h)(2) declares:

A defense of failure to state a claim upon which relief can be granted, a defense of failure to join a party indispensable under rule 19, and an objection of failure to state a legal defense to a claim may be made in any pleading permitted or ordered under rule 7(a), or by motion for judgment on the pleadings, or at the trial on the merits.

We conflate our analysis under the respective sections of CR 12. Subsection (h) references a failure to state a claim. Appellate courts treat a CR 12(c) motion for judgment on the pleadings identically to a CR 12(b)(6) motion to dismiss for failure to state a claim. P.E. Systems, LLC v. CPI Corp., 176 Wn.2d 198, 203, 289 P.3d 638 (2012).

This court reviews a dismissal under CR 12...